November 2010

1. Assessment of Mid-Term Congressional Election Results

Riding a huge wave of anger over the nation’s economy and government spending, the GOP reclaimed control of the House of Representatives in November’s mid-term Congressional elections and reduced Democratic control of the Senate to a slim majority in the upcoming 112th Congress. (The GOP gained approximately 60 seats in the House and six in the Senate.)

Divided government has once again returned, with considerable uncertainty about whether Congressional Republicans and the Democratic President can agree on much of anything over the next two years. The most likely outcome will involve political gamesmanship between the two parties in the ramp-up to the 2012 elections, with very little to show for it except legislative gridlock.

With Republicans gaining control of the House, the chairmanships of all House committees and subcommittees will change hands. That means that Rep. Lamar Smith (R-Texas) will take the reins of the House Judiciary Committee from Rep. John Conyers (D-Mich.). Smith recently told reporters that his priorities would focus on national security, immigration, patent reform, lawsuit abuse, and child sexual exploitation. (Early next year, Congress also will revisit the Patriot Act since several provisions are set to expire at the end of February, necessitating at least a short-term extension of those parts of the law.) 

Aggressive oversight of the Obama administration—a likely broad House Republican theme—will mean much closer scrutiny of the Department of Justice by the House Judiciary Committee.

Athough “chairman-to-be” Smith could reorganize the overall subcommittee structure and musical chairs in chairmanships could occur, the likely House Judiciary Committee and Subcommittee chairs are:

House Judiciary Committee 

Commercial and Administrative Law
Constitution, Civil Rights & Liberties
Courts & Competition Policy
Crime Terrorism & Homeland Security
Immigration, Citizenship, Border Security
Rep. Lamar Smith (R-Texas)

Rep. Trent Franks (R-AZ)
Rep. Jim Sensenbrenner (R-WI)
Rep. Howard Coble (R-NC)
Rep. Louie Gohmert (R-TX)
Rep. Steve King (R-IA)


In the Senate, Sen. Patrick Leahy (D-Vt.) was reelected and will remain as chair of the Senate Judiciary Committee. Sen. Jeff Sessions (R-Ala.), will relinquish the ranking Republican slot to Sen. Charles Grassley (R-Iowa), who is term-limited as the ranking GOP member on the Finance Committee. Democrats are expected to lose one seat and Republicans are expected to gain two on the 19-member Judiciary Committee. At least three Democrats will leave the committee: Sen. Ted Kaufman (D-Del.), Sen. Russ Feingold (D-Wis.), and Sen. Arlen Specter D-Pa.).

2. Judicial Vacancies

Republican gains in the full Senate and on the committee will only intensify battles on the Judiciary Committee over judicial nominees in the coming Congress. Any nominations still pending when the lame-duck Congress adjourns will have to be resubmitted next year. 

Congressional lawmakers will return to Washington in mid-November for a lame-duck session of uncertain length and uncertain value. Fortified by sweeping GOP wins in the midterm elections, Senate Republicans could end up refraining from agreeing with Democrats on much except for across-the-board extensions of the Bush tax cuts. These could be the first days of divided government expected over the next two years (between the branches, as well as within the branches and their parties) and legislative gridlock. Judicial vacancies especially could mount higher.

Vacancy Numbers: In early November, the total number of judicial vacancies in the federal courts stood at 106, with 20 circuit and 86 district judgeships unfilled. Judicial emergencies numbered 50 in the district and circuit courts.

Pending Nominees:
Forty-seven judicial nominees (13 to the circuits and 34 to the district courts) were pending as of early November, including 23 nominees reported out of the Senate Judiciary Committee and awaiting a Senate floor vote. 

Likely Action:
Action on judicial nominations in the Senate—especially on the 23 nominees that have cleared the Senate Judiciary Committee and await a final vote—is highly uncertain as of early November. Seventeen judicial nominees were approved in a bipartisan fashion, without controversy by the Committee.

FBA Chapter Advocacy: FBA chapters are continuing to contact their senators to urge action on pending nominees in their own states and committee-cleared nominees who await an up-or-down Senate floor vote. 

3. Bankruptcy Judgeships Legislation Stalled

Senate approval of legislation to add 13 permanent bankruptcy judgeships during the lame duck session is also uncertain. Sen. Tom Coburn (R-Okla.) continues to block expedited approval of the bill in the Senate. Prior to the election recess, Republicans declined to agree to streamlined approval of the legislation by unanimous consent. The House passed a nearly identical bankruptcy measure (H.R. 4506) in March. 

The bill (S. 193), sponsored by Sen. Dianne Feinstein (D-Calif.) and approved in June by the Senate Judiciary Committee on a 12-7 vote, would create 13 new judgeships, make permanent 22 temporary bankruptcy judgeships created in 1992 and 2005, and extend for five years the authorization on two temporary positions. It would provide for one additional district court judge for the Eastern District of California and one additional district court judge for the District of Nebraska. It also would extend temporary judgeships in the Districts of Hawaii, Kansas, Northern Ohio, Arizona, Central California, and Eastern Texas.

4. House Panel Holds Hearing on Courtroom Access and Use

The federal judiciary and the General Services Administration are in the midst of a multibillion dollar courthouse construction initiative, which has faced rising construction costs. A House Judiciary subcommittee on September 29 held a hearing to address cost concerns about future courthouse construction plans and how courtrooms are being utilized. Interruptions in the courthouse construction and renovation program are causing delays in building federal courthouses. At the same time, the Government Accountability Office (GAO) has reported that federal courtrooms are being under-used, in large part due to the growth of ADR and the demise of the federal trial. 

In its testimony at the Sept. 29 hearing, the GAO said that 33 federal courthouses completed since 2000 include 3.56 million square feet of extra space that was constructed above the congressionally authorized size due to overestimating the number of judges the courthouses would have and without planning for courtroom sharing among judges. Overall, this space represents about nine average-sized courthouses, according to the GAO. The estimated cost to construct this extra space, when adjusted to 2010 dollars, is $835 million, and the annual cost to rent, operate, and maintain it is $51 million. The GAO also reported that 27 of the 33 courthouses completed since 2000 exceed their congressionally authorized size by a total of 1.7 million square feet. Fifteen exceed their congressionally authorized size by more than 10 percent, and 12 of these 15 also had total project costs that exceeded the estimates provided to congressional committees.

Witnesses testifying for the federal judiciary justified their ongoing courthouse construction plans and said that the Administrative Office of the U.S. Courts has a system for analyzing the need for courthouses based on various factors, including the number of trials held there, the general safety and post-9/11 security of the building, and the ability to conduct a proper trial. Judge Michael A. Ponsor of the District of Massachusetts, chair of the Judicial Conference Committee on Space and Facilities, told the House Judiciary Subcommittee on Courts and Competition Policy that “The lack of adequate and appropriate courtroom space adversely impacts the Judiciary’s ability to provide access to justice, to effectively administer justice, and to ensure the safety and security of all participants in the judicial process.” 

5. Judicial Conference Approves Pilot Projects for Cameras in District Courts

On Sept. 14, the Judicial Conference of the United States announced a pilot project to allow cameras in some federal district courtroom proceedings. Only civil cases will be included in the program.

Although details of the program are still being developed, participation shall be at the discretion of the trial judge, with the parties to the court proceedings having the opportunity to veto cameras. The cameras will be set up and operated by court personnel, and the new policy bars recordings by others—including the news media.

In the 1990s, the Judicial Conference conducted a similar pilot program in civil proceedings in six district courts and two courts of appeals, but the program was never made permanent because of concerns about the impact on jurors and witnesses. Since then, Congressional pressure, court interest, and changes in video technology prompted the new study 16 years after the first pilot program. 

Cameras have been banned from federal criminal courts since 1946. In 1996, the conference allowed appeals courts to approve camera access, and now the U.S. Courts of Appeals in New York City (2nd Cir.) and San Francisco (9th Cir.) continue to do so.

6. Leahy Introduces Supreme Court Retired Justice Legislation

On Sept. 29, Sen. Patrick Leahy (D-Vt.) introduced legislation (S. 3871) authorizing the designation of retired Supreme Court justices to hear cases in which one or more current justices have recused themselves. 

“When a Justice needs to recuse from a matter under the rules that govern judicial conflicts of interest, the Supreme Court may be rendered ineffective, because there are no provisions in place to allow another to be designated to sit in his or her place,” Leahy said in an introductory statement on the bill in the Sept. 29 Congressional Record.

The legislation is timely given that Justice Elena Kagan has recused herself from 25 of the 51 cases the Supreme Court has accepted so far this term, all as a result of her 14-month tenure as solicitor general. Leahy's bill would let retired justices fill-in. Leahy says every other court has this provision.

Leahy’s legislation is not expected to move in the remainder of the current Congress. Leahy said his goal is to start a discussion that leads to passage next year.

7. Judge Porteous Impeachment Hearing Concludes

The Senate impeachment trial of New Orleans federal judge Thomas Porteous concluded after five days of hearings in September. The trial committee’s chair, Sen. Claire McCaskill (D-Mo.), redicted a vote by the full Senate later this year, probably after Thanksgiving. Sen. McCaskill said the process was fair and "will stand the test of time." 

Porteous faces four articles of impeachment accusing him of taking money, expensive meals, and other gifts from lawyers and a bail bond company with business before him and with making false statements in a personal bankruptcy filing. The four articles are detailed here.

Though much of the "improper conduct" occurred when he was a state judge, the impeachment articles are founded on the theory that Porteous had an obligation to disclose his actions during his nomination and confirmation process in 1994. He was appointed to the U.S. District Court in New Orleans by President Bill Clinton. The articles accuse Porteous of engaging "in a pattern of conduct that is incompatible with the trust and confidence placed in him as a federal judge."

The 12-member Senate Impeachment Trial Committee, evenly divided between Democrats and Republicans, is charged with submitting to the full Senate an "impartial" report on the testimony and evidence presented during the trial. If two-thirds of the senators voting approve one or more of the four articles of impeachment approved unanimously last March by the House, Porteous would become the eighth judge removed from office and lose his federal pension.

8. FBA Government Relations Committee Report to National Council

FBA Government Relations Committee Chair Larry Westberg reported to the FBA National Council on the work of the committee at the council’s meeting on Sept. 25 during the FBA National Convention in New Orleans. The report is here.


Prepared by Bruce Moyer
Counsel for Government Relations
Federal Bar Association


Connect With Us...